Freedom Of Speech Constitution

Order Code 95-815
Freedom of Speech and Press:
Exceptions to the First Amendment
Updated September 9, 2008
Henry Cohen
Legislative Attorney
American Law Division
Freedom of Speech and Press:
Exceptions to the First Amendment
Summary
The First Amendment to the United States Constitution provides that “Congress
shall make no law ... abridging the freedom of speech, or of the press....” This
language restricts government both more and less than it would if it were applied
literally. It restricts government more in that it applies not only to Congress, but to
all branches of the federal government, and to all branches of state and local
government. It restricts government less in that it provides no protection to some
types of speech and only limited protection to others.
This report provides an overview of the major exceptions to the First
Amendment — of the ways that the Supreme Court has interpreted the guarantee of
freedom of speech and press to provide no protection or only limited protection for
some types of speech. For example, the Court has decided that the First Amendment
provides no protection to obscenity, child pornography, or speech that constitutes
“advocacy of the use of force or of law violation ... where such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite or produce
such action.”
The Court has also decided that the First Amendment provides less than full
protection to commercial speech, defamation (libel and slander), speech that may be
harmful to children, speech broadcast on radio and television, and public employees’
speech. Even speech that enjoys the most extensive First Amendment protection may
be subject to “regulations of the time, place, and manner of expression which are
content-neutral, are narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication.” And, even speech that
enjoys the most extensive First Amendment protection may be restricted on the basis
of its content if the restriction passes “strict scrutiny,” i.e., if the government shows
that the restriction serves “to promote a compelling interest” and is “the least
restrictive means to further the articulated interest.”
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Obscenity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Child Pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Content-Based Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Non-Content-Based Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Prior Restraint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Commercial Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Speech Harmful to Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Children’s First Amendment Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Time, Place, and Manner Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Incidental Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Symbolic Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Compelled Speech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Radio and Television . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Freedom of Speech and Government Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Free Speech Rights of Government Employees
and Government Contractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Government Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Government Contractors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Freedom of Speech and Press:
Exceptions to the First Amendment
Introduction
The First Amendment to the United States Constitution provides that “Congress
shall make no law ... abridging the freedom of speech, or of the press....” This
language restricts government both more and less than it would if it were applied
literally. It restricts government more in that it applies not only to Congress, but to
all branches of the federal government, and to all branches of state and local
government.1 It restricts government less in that it provides no protection to some
types of speech and only limited protection to others.
This report provides an overview of the major exceptions to the First
Amendment — of the ways that the Supreme Court has interpreted the guarantee of
freedom of speech and press to provide no protection or only limited protection for
some types of speech.2 For example, the Court has decided that the First Amendment
provides no protection to obscenity, child pornography, or speech that constitutes
“advocacy of the use of force or of law violation ... where such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite or produce
such action.”
The Court has also decided that the First Amendment provides less than full
protection to commercial speech, defamation (libel and slander), speech that may be
harmful to children, speech broadcast on radio and television, and public employees’
speech. Even speech that enjoys the most extensive First Amendment protection may
be subject to “regulations of the time, place, and manner of expression which are
content-neutral, are narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication.” And, even speech that
enjoys the most extensive First Amendment protection may be restricted on the basis
of its content if the restriction passes “strict scrutiny,” i.e., if the government shows
that the restriction serves “to promote a compelling interest” and is “the least
restrictive means to further the articulated interest.”
1
Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979).
2
Supreme Court cases supporting all the prohibitions and restrictions on speech noted in this
and the next paragraph are cited in footnotes accompanying the subsequent discussion of
these prohibitions and restrictions.
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Obscenity3
Obscenity apparently is unique in being the only type of speech to which the
Supreme Court has denied First Amendment protection without regard to whether it
is harmful to individuals. According to the Court, there is evidence that, at the time
of the adoption of the First Amendment, obscenity “was outside the protection
intended for speech and press.”4 Consequently, obscenity may be banned simply
because a legislature concludes that banning it protects “the social interest in order
and morality.”5 No actual harm, let alone compelling governmental interest, need be
shown in order to ban it.
What is obscenity? It is not synonymous with pornography, as most
pornography is not legally obscene; i.e., most pornography is protected by the First
Amendment. To be obscene, pornography must, at a minimum, “depict or describe
patently offensive ‘hard core’ sexual conduct.”6 The Supreme Court has created a
three-part test, known as the Miller test, to determine whether a work is obscene.
The Miller test asks:
(a) whether the “average person applying contemporary community standards”
would find that the work, taken as a whole, appeals to the prurient interest; (b)
whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and (c) whether the
work, taken as a whole, lacks serious literary, artistic, political, or scientific
value.7
The Supreme Court has clarified that only “the first and second prongs of the
Miller test — appeal to prurient interest and patent offensiveness — are issues of fact
for the jury to determine applying contemporary community standards.”8 As for the
third prong, “[t]he proper inquiry is not whether an ordinary member of any given
3
For additional information, see CRS Report 95-804, Obscenity and Indecency:
Constitutional Principles and Federal Statutes, by Henry Cohen.
4
Roth v. United States, 354 U.S. 476, 483 (1957). However, Justice Douglas, dissenting,
wrote: “[T]here is no special historical evidence that literature dealing with sex was
intended to be treated in a special manner by those who drafted the First Amendment.” Id.
at 514.
5
Id. at 485.
6
Miller v. California, 413 U.S. 15, 27 (1973).
7
Id. at 24 (citation omitted).
8
Pope v. Illinois, 481 U.S. 497, 500 (1987). In Hamling v. United States, 418 U.S. 87, 105
(1974), the Court noted that a “community” was not any “precise geographic area,” and
suggested that it might be less than an entire state. In Ashcroft v. American Civil Liberties
Union, 535 U.S. 564, 577 (2002), the Supreme Court recognized that “Web publishers
currently lack the ability to limit access to their sites on a geographic basis,” and that
therefore the use of community standards to define “obscenity” “would effectively force all
speakers on the Web to abide by the ‘most puritan’ community’s standards.” Nevertheless,
the Court found that use of community standards “does not by itself render” a statute
unconstitutional.” Id. at 585 (emphasis in original).
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community would find serious literary, artistic, political, or scientific value in
allegedly obscene material, but whether a reasonable person would find such value
in the material, taken as a whole.”9
The Supreme Court has allowed one exception to the rule that obscenity is not
protected by the First Amendment: one has a constitutional right to possess obscene
material “in the privacy of his own home.”10 However, there is no constitutional
right to provide obscene material for private use11 or even to acquire it for private
use.12
Child Pornography13
Child pornography is material that visually depicts sexual conduct by children.14
It is unprotected by the First Amendment even when it is not obscene; i.e., child
pornography need not meet the Miller test to be banned. Because of the legislative
interest in destroying the market for the exploitative use of children, there is no
constitutional right to possess child pornography even in the privacy of one’s own
home.15
In 1996, Congress enacted the Child Pornography Protection Act (CPPA),
which defined “child pornography” to include visual depictions that appear to be of
a minor, even if no minor is actually used. The Supreme Court, however, declared
the CPPA unconstitutional to the extent that it prohibited pictures that are produced
without actual minors.16 Pornography that uses actual children may be banned
because laws against it target “[t]he production of the work, not its content”; the
CPPA, by contrast, targeted the content, not the production.17 The government “may
not prohibit speech because it increases the chance an unlawful act will be committed
‘at some indefinite future time.’”18 In 2003, Congress responded by enacting Title
V of the PROTECT Act, P.L. 108-21, which prohibits any “digital image, computer
9
Pope v. Illinois, 481 U.S. at 500-501.
10
Stanley v. Georgia, 394 U.S. 557, 568 (1969).
11
United States v. Reidel, 402 U.S. 351 (1971).
12
United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973).
13
For additional information, see CRS Report 95-406, Child Pornography: Constitutional
Principles and Federal Statutes, by Henry Cohen.
14
New York v. Ferber, 458 U.S. 747, 764 (1982). The definition of “sexually explicit
conduct” in the federal child pornography statute includes “lascivious exhibition of the
genitals or pubic area of any person [under 18], and “is not limited to nude exhibitions or
exhibitions in which the outlines of those areas [are] discernible through clothing.” 18
U.S.C. §§ 2256(2)(A)(v), 2252 note.
15
Osborne v. Ohio, 495 U.S. 103 (1990).
16
Ashcroft v. Free Speech Coalition, 435 U.S. 234 (2002).
17
Id. at 249; see also, id. at 242.
18
Id. at 253.
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image, or computer-generated image that is, or is indistinguishable from, that of a
minor engaging in sexually explicit conduct.” It also prohibits “a visual depiction of
any kind, including a drawing, cartoon, sculpture, or painting, that ... depicts a minor
engaging in sexually explicit conduct,” and is obscene or lacks serious literary,
artistic, political, or scientific value.
Content-Based Restrictions
Justice Holmes, in one of his most famous opinions, wrote:
The most stringent protection of free speech would not protect a man in falsely
shouting fire in a theater and causing a panic.... The question in every case is
whether the words used ... create a clear and present danger....19
In its current formulation of this principle, the Supreme Court held that
“advocacy of the use of force or of law violation” is protected unless “such advocacy
is directed to inciting or producing imminent lawless action and is likely to incite or
produce such action.”20 Similarly, the Court held that a statute prohibiting threats
against the life of the President could be applied only against speech that constitutes
a “true threat,” and not against mere “political hyperbole.”21
In cases of content-based restrictions of speech other than advocacy or threats,
the Supreme Court generally applies “strict scrutiny,” which means that it will uphold
a content-based restriction only if it is necessary “to promote a compelling interest,”
and is “the least restrictive means to further the articulated interest.”22
Thus, it is ordinarily unconstitutional for a state to proscribe a newspaper from
publishing the name of a rape victim, lawfully obtained.23 This is because there
19
Schenck v. United States, 249 U.S. 47, 52 (1919).
20
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). See also, Stewart v. McCoy, 537 U.S.
993 (2002) (Justice Stevens’ statement accompanying denial of certiorari).
21
Watts v. United States, 394 U.S. 705, 708 (1969). See also, NAACP v. Claiborne
Hardware Co., 458 U.S. 886 (1982); Planned Parenthood v. American Coalition of Life
Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc), cert. denied, 539 U.S. 958 (2003) (the
“Nuremberg Files” case); Virginia v. Black, 538 U.S. 343, 360 (2003) (“Intimidation in the
constitutionally proscribable sense of the word is a type of true threat, where a speaker
directs a threat to a person or group of persons with the intent of placing the victim in fear
of bodily harm or death.”).
22
Sable Communications of California, Inc. v. Federal Communications Commission, 492
U.S. 115, 126 (1989). The Court does not apply strict scrutiny to another type of content-
based restrictions — restrictions on commercial speech, which is discussed below.
23
The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Court left open the question
“whether, in cases where information has been acquired unlawfully by a newspaper or by
a source, the government may ever punish not only the unlawful acquisition, but the ensuing
publication as well.” Id. at 535 n.8 (emphasis in original). In Bartnicki v. Vopper, 532 U.S.
514 (2001), the Court held that a content-neutral statute prohibiting the publication of
(continued...)
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ordinarily is no compelling governmental interest in protecting a rape victim’s
privacy.24 By contrast, “[n]o one would question but that a government might
prevent actual obstruction to its recruiting service or the publication of the sailing
dates of transports or the number and location of troops.”25 Similarly, the
government may proscribe “‘fighting’ words — those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace.”26 Here the Court
was referring to utterances that constitute “epithets or personal abuse” that “are no
essential part of any exposition of ideas,” as opposed to, for example, flag burning,
which is discussed below, under “Symbolic Speech.”
Non-Content-Based Restrictions
If the government limits speech, but its purpose in doing so is not based on the
content of the speech, then the limitation on speech may still violate the First
Amendment, but it is less likely than a content-based restriction to do so. This is
because the Supreme Court applies less than “strict scrutiny” to non-content-based
restrictions. With respect to non-content-based restrictions, the Court requires that
the governmental interest be “significant” or “substantial” or “important,” but not
necessarily, as with content-based restrictions, “compelling.” And, in the case of
non-content-based restrictions, the Court requires that the restriction be narrowly
tailored, but not, as with content-based restrictions, that it be the least restrictive
means to advance the governmental interest.
Two types of speech restrictions that receive this “intermediate” scrutiny are (1)
time, place, or manner restrictions, and (2) incidental restrictions, which are
restrictions aimed at conduct other than speech, but that incidentally restrict speech.
This report includes separate sections on these two types of restrictions. In addition,
restrictions on commercial speech, though content-based, are subject to similar
intermediate scrutiny; this report also includes a separate section on commercial
speech. Finally, bans on nude dancing and zoning restrictions on pornographic
theaters and bookstores, although discriminating on the basis of the content of
speech, receive intermediate scrutiny because, according to the Supreme Court, they
23
(...continued)
illegally intercepted communications (in this case a cell phone conversation) violates free
speech where the person who publishes the material did not participate in the interception,
and the communication concerns a public issue.
24
However, the Court did “not rule out the possibility that, in a proper case, imposing civil
sanctions for publication of the name of a rape victim might be ... overwhelmingly necessary
to advance” a compelling state interest. Id. at 537.
25
Near v. Minnesota, 283 U.S. 697, 716 (1931).
26
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Campus “hate speech”
prohibitions at public colleges (the First Amendment does not apply to private colleges) are
apparently unconstitutional, even as applied to fighting words, if they cover only certain
types of hate speech, such as speech based on racial hatred. This conclusion is based on the
cross-burning case, R.A.V. v. City of St. Paul, infra note 138.
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are aimed at combating “secondary effects,” such as crime, and not at the content of
speech.27
Prior Restraint
There are two ways in which the government may attempt to restrict speech.
The more common way is to make a particular category of speech, such as obscenity
or defamation, subject to criminal prosecution or civil suit, and then, if someone
engages in the proscribed category of speech, to hold a trial and impose sanctions if
appropriate. The second way is by prior restraint, which may occur in two ways.
First, a statute may require that a person submit the speech that he wishes to
disseminate — a movie, for example — to a governmental body for a license to
disseminate it — e.g., to show the movie. Second, a court may issue a temporary
restraining order or an injunction against engaging in particular speech — publishing
the Pentagon Papers, for example.
With respect to both these types of prior restraint, the Supreme Court has written
that “[a]ny system of prior restraint of expression comes to this Court bearing a heavy
presumption against its constitutional validity.”28 Prior restraints, it has held,
are the most serious and least tolerable infringement on First Amendment rights. ...
A prior restraint, ... by definition, has an immediate and irreversible sanction. If it
can be said that a threat of criminal or civil sanctions after publication “chills”
speech, prior restraint “freezes” it at least for the time. The damage can be parti-
cularly great when the prior restraint falls upon the communication of news and
commentary on current events.29
The Supreme Court has written that “[t]he special vice of a prior restraint is that
communication will be suppressed ... before an adequate determination that it is
unprotected by the First Amendment.”30 The prohibition on prior restraint, thus, is
27
For additional information on this subject, see CRS Report 95-804, Obscenity and
Indecency: Constitutional Principles and Federal Statutes, by Henry Cohen.
28
Freedman v. Maryland, 380 U.S. 51, 57, 58 (1965) (“a noncriminal process which requires
the prior submission of a film to a censor avoids constitutional infirmity only if it takes place
under procedural safeguards”); New York Times Co. v. United States, 403 U.S. 713, 714
(1971) (injunction sought by United States against publication of the Pentagon Papers
denied).
29
Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976) (striking down a court
order restraining the publication or broadcast of accounts of confessions or admissions made
by the defendant at a criminal trial). Injunctions that are designed to restrict merely the
time, place, or manner of a particular expression are subject to a less stringent application
of First Amendment principles; see, “Time, Place, and Manner Restrictions,” below.
30
Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations Commission, 413
U.S. 376, 390 (1973); see also, Vance v. Universal Amusement Co., 445 U.S. 308, 315-316
(1980) (“the burden of supporting an injunction against a future exhibition [of allegedly
obscene motion pictures] is even heavier than the burden of justifying the imposition of a
(continued...)
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essentially a limitation on restraints until a final judicial determination that the
restricted speech is not protected by the First Amendment. It is a limitation, for
example, against temporary restraining orders and preliminary injunctions pending
final judgment, not against permanent injunctions after a final judgment is made that
the restricted speech is not protected by the First Amendment.31
In the case of a statute that imposes prior restraint, “a prescreening arrangement
can pass constitutional muster if it includes adequate procedural safeguards.”32 These
procedural safeguards, the Court wrote, include that “the burden of proving that the
film is unprotected expression must rest on the censor,” and “that the censor will,
within a specified brief period, either issue a license or go to court to restrain
showing the film.”33 In the case of time, place, or manner restrictions (and
presumably other forms of speech that do not receive full First Amendment
protection), lesser procedural safeguards are adequate.34
Prior restraints are permitted in some circumstances. The Supreme Court has
written, in dictum, “that traditional prior restraint doctrine may not apply to
[commercial speech],”35 and the Court has not ruled whether it does. “The vast
majority of [federal] circuits ... do not apply the doctrine of prior restraint to
commercial speech.”36 “Some circuits [however] have explicitly indicated that the
requirement of procedural safeguards in the context of a prior restraint indeed applies
to commercial speech.”37
Furthermore, “only content-based injunctions are subject to prior restraint
analysis.”38 In addition, prior restraint is generally permitted, even in the form of
30
(...continued)
criminal sanction for a past communication”).
31
See, Mark A. Lemley and Eugene Volohk, Freedom of Speech and Injunctions in
Intellectual Property Cases, 48 Duke Law Journal 147, 169-171 (1998).
32
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447
U.S. 557, 571 n.13.
33
Freedman, supra note 28, 380 U.S. at 58, 59.
34
Thomas v. Chicago Park District, 534 U.S. 316, 322-323 (2002).
35
Central Hudson, supra note 32, 447 U.S. at 571 n.13.
36
Bosley v. WildWetT.com, 310 F. Supp. 2d 914, 930 (N.D. Ohio 2004).
37
New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123, 131 (2d Cir.
1998), cert. denied, 525 U.S. 824 (1998); citing as examples, Desert Outdoor Adver. v. City
of Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996); In re Search of Kitty’s East, 905 F.2d
1367, 1371-72 & n.4 (10th Cir. 1990).
38
DVD Copy Control Association, Inc. v. Bunner, 75 P.3d 1, 17 (Cal. 2003) (a “prior
restraint is a content-based restriction on speech prior to its occurrence” (italics in
original)). For the test regarding content-neutral injunctions, see the section on “Time,
Place, and Manner Restrictions,” below.
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preliminary injunctions, in intellectual property cases, such as those for infringements
of copyright or trademark.39
Commercial Speech
“The Constitution ... affords a lesser protection to commercial speech than to
other constitutionally guaranteed expression.”40 Commercial speech is “speech that
proposes a commercial transaction.”41 That books and films are published and sold
for profit does not make them commercial speech; i.e., it does not “prevent them
from being a form of expression whose liberty is safeguarded [to the maximum
extent] by the First Amendment.”42 Commercial speech, however, may be banned
if it is false or misleading, or if it advertises an illegal product or service. Even if fits
in none of these categories, the government may regulate it more than it may regulate
fully protected speech. In addition, the government may generally require disclosures
to be included in commercial speech; see the section on “Compelled Speech,” below.
The Supreme Court has prescribed the four-prong Central Hudson test to
determine whether a governmental regulation of commercial speech is constitutional.
This test asks initially (1) whether the commercial speech at issue is protected by the
First Amendment (that is, whether it concerns a lawful activity and is not misleading)
and (2) whether the asserted governmental interest in restricting it is substantial. “If
both inquiries yield positive answers,” then to be constitutional the restriction must
(3) “directly advance[ ] the governmental interest asserted,” and (4) be “not more
extensive than is necessary to serve that interest.”43
The Supreme Court has held that, in applying the third prong of the Central
Hudson test, the courts should consider whether the regulation, in its general
39
Bosley, supra note 36, at 930; Lemley and Volokh, supra note 31 (arguing that intellectual
property should have the same First Amendment protection from preliminary injunctions
as other speech).
40
United States v. Edge Broadcasting Co., 509 U.S. 418 (1993).
41
Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989)
(emphasis in original). In Nike, Inc. v. Kasky, 45 P.3d 243 (2002), cert. dismissed, 539 U.S.
654 (2003), Nike was sued for unfair and deceptive practices for allegedly false statements
it made concerning the working conditions under which its products were manufactured.
The California Supreme Court ruled that the suit could proceed, and the Supreme Court
granted certioriari, but then dismissed it as improvidently granted, with a concurring and two
dissenting opinions. The issue left undecided was whether Nike’s statements, though they
concerned a matter of public debate and appeared in press releases and letters rather than
in advertisements for its products, should be deemed “‘commercial speech’ because they
might affect consumers’ opinions about the business as a good corporate citizen and thereby
affect their purchasing decisions.” Id. at 657 (Stevens, J., concurring). Nike subsequently
settled the case.
42
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502 (1952).
43
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, supra
note 32, 447 U.S. at 566 (1980).
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application, directly advances the governmental interest asserted. If it does, then it
need not advance the governmental interest as applied to the particular person or
entity challenging it.44 Its application to the particular person or entity challenging
it is relevant in applying the fourth Central Hudson factor, although this factor too
is to be viewed in terms of “the relation it bears to the overall problem the
government seeks to correct.”45 The fourth prong is not to be interpreted “strictly”
to require the legislature to use the “least restrictive means” available to accomplish
its purpose. Instead, the Court has held, legislation regulating commercial speech
satisfies the fourth prong if there is a reasonable “fit” between the legislature’s ends
and the means chosen to accomplish those ends.46
The Supreme Court has applied the Central Hudson test in all the commercial
speech cases it has decided since Central Hudson, and we discuss the ten most recent
below, in chronological order.47 In nine of these cases, the Court struck down the
challenged speech restriction; it has not upheld a commercial speech restriction since
1993. In its most recent commercial speech case, Thompson v. Western States
Medical Center, the Court noted that “several Members of the Court have expressed
doubts about the Central Hudson analysis and whether it should apply in particular
cases.” These justices believe that the test does not provide adequate protection to
commercial speech, but the Court has found it unnecessary to consider whether to
abandon the test, because it has been striking down the statutes in question anyway.
In Cincinnati v. Discovery Network, Inc., the Court struck down a Cincinnati
regulation that banned newsracks on public property if they distributed commercial
publications, but not if they distributed news publications.48 As for the first two
prongs of the Central Hudson test, the Court found that the commercial publications
at issue were not unlawful or misleading, and that the asserted governmental interest
in safety and esthetics was substantial. As for the third and fourth prongs, although
banning commercial newsracks presumably advances the asserted governmental
interests, the distinction between commercial and noncommercial speech “bears no
relationship whatsoever to the particular interests that the city has asserted.”49 The
city, therefore, did not establish “the ‘fit’ between its goals and its chosen means that
is required by our opinion in Fox.”50
In Edenfield v. Fane,51 the Court struck down a Florida ban on solicitation by
certified public accountants, even though the Court had previously, in Ohralik v.
44
See, Edge Broadcasting, supra note 40, 509 U.S. at 427.
45
Id. at 430.
46
Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480 (1989).
47
We do not include among the ten the three cases (discussed below, at the end of the
section on “Compelled Speech”) involving assessments for government-compelled
advertisements, because the Court did not apply the Central Hudson test in these cases.
48
507 U.S. 410 (1993).
49
Id. at 424 (emphasis in original).
50
Id. at 428.
51
507 U.S. 761 (1993).
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Ohio State Bar Association,52 upheld a ban on solicitation by attorneys. The Court
found that the government had substantial interests in the ban, including the
prevention of fraud, the protection of privacy, and the need to maintain CPA
independence and to guard against conflicts of interest. However, the Court found
no evidence that the ban directly advanced these interests, and noted, among other
things, that, “[u]nlike a lawyer, a CPA is not ‘a professional trained in the art of
persuasion,’” and “[t]he typical client of a CPA is far less susceptible to manipulation
than the young accident victim in Ohralik.”53
The Court added, more generally, that the government’s burden in justifying a
restriction on commercial speech “is not satisfied by mere speculation or conjecture;
rather, a governmental body seeking to sustain a restriction on commercial speech
must demonstrate that the harms it recites are real and that its restriction will in fact
alleviate them to a material degree.”54
In United States v. Edge Broadcasting Co., the Court upheld “federal statutes
that prohibit the broadcast of lottery advertising by a broadcaster licensed to a State
that does not allow lotteries, while allowing such broadcasting by a broadcaster
licensed to a State that sponsors a lottery....”55 The governmental interest in the
statutes was to balance the interests of states that prohibit lotteries and states that
operate lotteries. The broadcaster that challenged the statutes was licensed in North
Carolina, which does not allow lotteries, but broadcasted from only three miles from
the Virginia border, which does allow lotteries. The broadcaster claimed that
prohibiting it from broadcasting advertisements for the Virginia lottery did not
advance the governmental interest or represent a “reasonable fit” because North
Carolina radio listeners in its area were already inundated with advertisements from
Virginia stations advertising the Virginia lottery and because most of the
broadcaster’s listeners were in Virginia. The Supreme Court upheld the statutes
because, even if they did not advance the governmental interest or represent a
reasonable fit as applied to the particular broadcaster, they did as applied to the
overall problem the government sought to address.
In Ibanez v. Florida Board of Accountancy, the Court held that the Florida
Board of Accountancy could not reprimand an accountant for truthfully referring to
her credentials as a Certified Public Accountant and a Certified Financial Planner in
her advertising and other communication with the public, such as her business cards
52
436 U.S. 447 (1978).
53
Edenfield, supra note 51, 507 U.S. at 775.
54
Id. at 770-771.
55
Edge Broadcasting, supra note 40, 509 U.S. at 421.
CRS-11
and stationery.56 The Court wrote that it “cannot imagine how consumers can be
misled by her truthful representation” that she was a CPA.”57
In Rubin v. Coors Brewing Co., the Court struck down a federal statute, 27
U.S.C. § 205(e), that prohibits beer labels from displaying alcohol content unless
state law requires such disclosure.58 The Court found sufficiently substantial to
satisfy the second prong of the Central Hudson test the government’s interest in
curbing “strength wars” by beer brewers who might seek to compete for customers
on the basis of alcohol content. However, it concluded that the ban “cannot directly
and materially advance” this “interest because of the overall irrationality of the
Government’s regulatory scheme.”59 This irrationality is evidenced by the fact that
the ban does not apply to beer advertisements, and by the fact that the statute requires
the disclosure of alcohol content on the labels of wines and spirits.
In Florida Bar v. Went For It, Inc., the Court upheld a rule of the Florida Bar
that prohibited personal injury lawyers from sending targeted direct-mail solicitations
to victims and their relatives for 30 days following an accident or disaster.60 The Bar
argued “that it has a substantial interest in protecting the privacy and tranquility of
personal injury victims and their loved ones against intrusive, unsolicited contact by
lawyers,”61 and the Court found that “[t]he anecdotal record mustered by the Bar” to
demonstrate that its rule would advance this interest in a direct and material way was
“noteworthy for its breadth and detail”;62 it was not “mere speculation and
conjecture.”63 Therefore, the rule passed what the Court called the second prong of
the Central Hudson test.64 As for the final prong, the Court found the Bar’s rule to
be “reasonably well tailored to its stated objective....”65 In a subsequent case, the
56
512 U.S. 136 (1994). Curiously, the Court in Ibanez writes that “only false, deceptive,
or misleading commercial speech may be banned” (id. at 142), despite its decisions
upholding bans of truthful commercial speech in Edge Broadcasting, supra note 40, and
other cases. Perhaps the Court meant that only false, deceptive, or misleading commercial
speech may be banned without consideration of the second, third, and fourth prongs of the
Central Hudson test.
57
Id. at 144.
58
514 U.S. 476 (1995).
59
Id. at 488.
60
515 U.S. 618 (1995).
61
Id. at 624.
62
Id. at 627.
63
Id. at 626.
64
The Court referred to the Central Hudson test as having three parts, and referred to its
second, third, and fourth prongs, as, respectively, its first, second, and third. The Court did
not, however, alter the substance of the test. In 44 Liquormart, Inc. v. Rhode Island, 517
U.S. 484, 529 (1996) (O’Connor, J., concurring), the justices returned to the traditional
numbering.
65
Id. at 633. In Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Court had
(continued...)
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Court wrote that, in Florida Bar v. Went For It, Inc., it had “upheld a 30-day prohibi-
tion against a certain form of legal solicitation largely because it left so many
channels of communication open to Florida lawyers.”66
In 44 Liquormart, Inc. v. Rhode Island, the Court, struck down a state statute
that prohibited disclosure of retail prices in advertisements for alcoholic beverages.67
In the process, it increased the protection that the Central Hudson test guarantees to
commercial speech by making clear that a total prohibition on “the dissemination of
truthful, nonmisleading commercial messages for reasons unrelated to the
preservation of a fair bargaining process” will be subject to a stricter review by the
courts than a regulation designed “to protect consumers from misleading, deceptive,
or aggressive sales practices.”68
The Court added: “The First Amendment directs us to be especially skeptical
of regulations that seek to keep people in the dark for what the government perceives
to be their own good.”69 It concluded “that the price advertising ban cannot survive
the more stringent constitutional review that Central Hudson itself concluded was
appropriate for the complete suppression of truthful, nonmisleading commercial
speech.”70
In Greater New Orleans Broadcasting Association, Inc. v. United States,71 the
Court applied the Central Hudson test to strike down, as applied to advertisements
of private casino gambling that are broadcast by radio or television stations located
in Louisiana, where such gambling is legal, the same federal statute it had upheld in
65
(...continued)
previously held that a state may not place a “ban on all direct-mail solicitations, whatever
the time frame and whoever the recipient.” Florida Bar, 515 U.S. at 629 (emphasis in
original). The Court has also held that a nonprofit organization’s solicitation by letter of
prospective clients is a protected form of political expression (In re Primus, 436 U.S. 412
(1978)), and that a state may prohibit lawyers from soliciting prospective clients in person
(Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978)). The Aviation Disaster
Family Assistance Act of 1996, 49 U.S.C. § 1136(g)(2), prohibits unsolicited
communications concerning a potential action for personal injury or wrongful death before
the 30th day following an accident involving an air carrier providing interstate or foreign
air transportation.
66
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 502 (1996).
67
Id.
68
Id. at 501. The nine justices were unanimous in striking down the law, which prohibited
advertising the price of alcoholic beverages, but only parts of Justice Stevens’ opinion for
the Court were joined by a majority of justices. The quotations above, for example, are
from Part IV of the Court’s opinion, which was joined by only Justices Kennedy and
Ginsburg besides Justice Stevens.
69
Id. at 503.
70
Id. at 508, citing Central Hudson, supra note 32, 447 U.S. at 566, n.9.
71
527 U.S. 173 (1999).
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United States v. Edge Broadcasting Co.,72 as applied to broadcast advertising of
Virginia’s lottery by a radio station located in North Carolina, where no such lottery
was authorized. The Court emphasized the interrelatedness of the four parts of the
Central Hudson test; e.g., though the government has a substantial interest in
reducing the social costs of gambling, the fact that the Congress has simultaneously
encouraged gambling, because of its economic benefits, makes it more difficult for
the government to demonstrate that its restriction on commercial speech materially
advances its asserted interest and constitutes a reasonable “fit.” In this case, “[t]he
operation of [18 U.S.C.] § 1304 and its attendant regulatory regime is so pierced by
exemptions and inconsistencies that the Government cannot hope to exonerate it. . . .
[T]he regulation distinguishes among the indistinct, permitting a variety of speech
that poses the same risks the Government purports to fear, while banning messages
unlikely to cause any harm at all.”73
In Lorillard Tobacco Co. v. Reilly, the Supreme Court applied the Central
Hudson test to strike down most of the Massachusetts Attorney General’s regulations
governing the advertising and sale of cigarettes, smokeless tobacco, and cigars.74 The
Court first found the “outdoor and point-of-sale advertising regulations targeting
cigarettes” to be preempted by the Federal Cigarette Labeling and Advertising Act,
15 U.S.C. §§ 1331-1341.75 By its terms, however, this statute’s preemption provision
applies only to cigarettes, so the Court considered the smokeless tobacco and cigar
petitioners’ First Amendment challenges to the outdoor and point-of-sale advertising
regulations. Further, the cigarette petitioners did not raise a preemption challenge to
Massachusetts’ sales practices regulations (regulations, described below, other than
outdoor and point-of-sale advertising regulations), so the Court considered the
cigarette as well as the smokeless tobacco and cigar petitioners’ claim that these
regulations violate the First Amendment.
The Court struck down the outdoor advertising regulations under the fourth
prong of the Central Hudson test, finding that the prohibition of any advertising
within 1,000 feet of schools or playgrounds “prohibit[ed] advertising in a substantial
portion of the major metropolitan areas of Massachusetts,”76 and that such a burden
on speech did not constitute a reasonable fit between the means and ends of the
regulatory scheme. “Similarly, a ban on all signs of any size seems ill suited to target
the problem of highly visible billboards, as opposed to smaller signs.”77
The Court found “that the point-of-sale advertising regulations fail both the third
and fourth steps of the Central Hudson analysis.”78 The prohibition on advertising
“placed lower than five feet from the floor of any retail establishment which is
72
Edge Broadcasting, supra notes 40, 55.
73
527 U.S. at 190, 195.
74
533 U.S. 525 (2001).
75
Id. at 551.
76
Id. at 562.
77
Id. at 563.
78
Id. at 566.
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located within a one thousand foot radius of” any school or playground did not
advance the goal of preventing minors from using tobacco products because “[n]ot
all children are less than 5 feet tall, and those who are certainly have the ability to
look up and take in their surroundings.”79
The Court, however, upheld the sales practices regulations that “bar the use of
self-service displays and require that tobacco products be placed out of the reach of
all consumers in a location accessible only to salespersons.”80 These regulations,
though they “regulate conduct that may have a communicative component,” do so
“for reasons unrelated to the communications of ideas.”81 The Court therefore
applied the O’Brien test for incidental restrictions of speech (see the section below
on “Incidental Restrictions”) and concluded “that the State has demonstrated a
substantial interest in preventing access to tobacco products by minors and has
adopted an appropriately narrow means of advancing that interest.”82
In Thompson v. Western States Medical Center,83 the Court struck down section
503A of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 353a, which “exempts
‘compounded drugs’ from the Food and Drug Administration’s standard drug
approval requirements as long as the providers of those drugs abide by several
restrictions, including that they refrain from advertising or promoting particular
compounded drugs.”84 “Drug compounding,” the Court explained, “is a process by
which a pharmacist or doctor combines, mixes, or alters ingredients to create a
medication tailored to the needs of an individual patient.”85 The Court found that the
speech restriction in this case served “important” governmental interests, but that,
“[e]ven assuming” that it directly advances these interests, it failed the fourth prong
of the Central Hudson test.86 In considering the fourth prong, the Court wrote that
“the Government has failed to demonstrate that the speech restrictions are ‘not more
extensive than is necessary to serve’” the governmental interests, as “[s]everal non-
speech-related means [of serving those interests] might be possible here.”87 “If the
First Amendment means anything,” the Court added, “it means that regulating speech
must be a last — not first — resort. Yet here it seems to have been the first strategy
the Government thought to try.”88 The Court noted that it had “rejected the notion
that the Government has an interest in preventing the dissemination of truthful
79
Id.
80
Id. at 567.
81
Id. at 569.
82
Id.
83
535 U.S. 357 (2002).
84
Id. at 360.
85
Id. at 360-361.
86
Id. at 369, 371.
87
Id. at 371, 372.
88
Id. at 373.
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commercial information in order to prevent members of the public from making bad
decisions with the information.”89
In saying that the government failed to demonstrate that the speech restrictions
were “not more extensive than is necessary to serve” the governmental interests, the
Court was quoting from the fourth prong of the Central Hudson test, but nowhere in
Thompson did it note that it had previously modified the fourth prong to require
merely a reasonable “fit” between the legislature’s ends and means, and not use of
the least restrictive means to serve the governmental interests. Rather, it wrote: “In
previous cases addressing this final prong of the Central Hudson test, we have made
clear that if the Government could achieve its interests in a manner that does not
restrict speech, or that restricts less speech, the Government must do so.”90 Yet the
Court did not state that it intended to overrule its reasonable “fit” construction of the
fourth prong.
Defamation
Defamation (libel is written defamation; slander is oral defamation) is the
intentional communication of a falsehood about a person, to someone other than that
person, that injures the person’s reputation. The injured person may sue and recover
damages under state law, unless state law makes the defamation privileged (for
example, a statement made in a judicial, legislative, executive, or administrative
proceeding is ordinarily privileged). Being required to pay damages for a defamatory
statement restricts one’s freedom of speech; defamation, therefore, constitutes an
exception to the First Amendment.
The Supreme Court, however, has granted limited First Amendment protection
to defamation. The Court has held that public officials and public figures may not
recover damages for defamation unless they prove, with “convincing clarity,” that the
defamatory statement was made with “‘actual malice’ — that is, with knowledge that
it was false or with reckless disregard of whether it was false or not.”91
The Court has also held that a private figure who sues a media defendant for
defamation may not recover without some showing of fault, although not necessarily
of actual malice (unless the relevant state law requires it). However, if a defamatory
falsehood involves a matter of public concern, then even a private figure must show
actual malice in order to recover presumed damages (i.e., not actual financial
damages) or punitive damages.92
89
Id. at 374.
90
Id. at 371.
91
New York Times v. Sullivan, 376 U.S. 254, 279-280 (1964); Curtis Publishing Co. v.
Butts, 388 U.S. 130 (1967).
92
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
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Speech Harmful to Children
Speech that is otherwise fully protected by the First Amendment may be
restricted in order to protect children. This is because the Court has “recognized that
there is a compelling interest in protecting the physical and psychological well-being
of minors.”93 However, any restriction must be accomplished “‘by narrowly drawn
regulations without unnecessarily interfering with First Amendment freedoms.’ It
is not enough to show that the government’s ends are compelling; the means must be
carefully tailored to achieved those ends.”94
Thus, the government may prohibit the sale to minors of material that it deems
“harmful to minors” (“so called ‘girlie’ magazines”), whether or not they are not
obscene as to adults.95 It may prohibit the broadcast of “indecent” language on radio
and television during hours when children are likely to be in the audience, but it may
not ban it around the clock unless it is obscene.96 Federal law currently bans indecent
93
Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). A federal
district court noted that, in cases that involve a restriction of minors’ access to sexually
explicit material, “the Supreme Court’s jurisprudence does not require empirical evidence.
Only some minimal amount of evidence is required....” Playboy Entertainment Group, Inc.
v. U.S., 30 F. Supp. 2d 702, 716 (D. Del. 1998); aff’d, 529 U.S. 803 (2000). By contrast,
in cases not involving access of minors to sexually explicit material, the Supreme Court
generally requires that the government, to justify a restriction even on speech with less than
full First Amendment protection, “must demonstrate that the recited harms are real, not
merely conjectural, and that the regulation will in fact alleviate these harms in a direct and
material way.” Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994) (incidental
restriction on speech). See also, Edenfield v. Fane, 507 U.S. 761, 770-771 (1993)
(restriction on commercial speech); Nixon v. Shrink Missouri Government PAC, 528 U.S.
377, 392 (2000) (restriction on campaign contributions).
94
Id. In the case of content-based regulations, narrow tailoring requires that the regulation
be “the least restrictive means to further the articulated interest.”
95
Ginsberg v. New York, 390 U.S. 629, 631 (1968).
96
Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978);
Action for Children’s Television v. Federal Communications Commission, 58 F.3d 654
(D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). The Supreme Court has
stated that, to be indecent, a broadcast need not have prurient appeal; “the normal definition
of ‘indecent’ refers merely to nonconformance with accepted standards of morality,”
Pacifica, 438 U.S. at 740. The FCC holds that the concept “is intimately connected with the
exposure of children to language that describes, in terms patently offensive as measured by
contemporary community standards for the broadcast medium, sexual or excretory activities
and organs, at times of the day when there is a reasonable risk that children may be in the
audience.” Id. at 732. The FCC applied this definition in a case in which the singer Bono
said at the Golden Globe Awards that his award was “f[***]ing brilliant.” A federal court
of appeals, however, overruled the FCC, holding “that the FCC’s new policy regarding
‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act.”
Fox Television Stations, Inc. v. Federal Communications Commission, 489 F.3d 444 (2d
Cir. 2007), cert. granted, No. 07-582 (U.S. March 17, 2008). Similarly, the FCC fined
broadcast stations for broadcasting Janet Jackson’s exposure of her breast for nine-sixteenth
of a second during a Super Bowl halftime show, but a federal court of appeals overturned
(continued...)
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broadcasts between 6 a.m. and 10 p.m.97 Similarly, Congress may not ban dial-a-
porn, but it may (as it does at 47 U.S.C. § 223) prohibit it from being made available
to minors or to persons who have not previously requested it in writing.98
In Reno v. American Civil Liberties Union, the Supreme Court declared
unconstitutional two provisions of the Communications Decency Act (CDA) that
prohibited indecent communications to minors on the Internet.99 The Court held that
the CDA’s “burden on adult speech is unacceptable if less restrictive alternatives
would be at least as effective in achieving the legitimate purpose that the statute was
enacted to serve.” “[T]he governmental interest in protecting children from harmful
materials ... does not justify an unnecessarily broad suppression of speech addressed
to adults. As we have explained, the Government may not ‘reduc[e] the adult
population ... to ... only what is fit for children.’”100
The Court distinguished the Internet from radio and television because (1) “[t]he
CDA’s broad categorical prohibitions are not limited to particular times and are not
dependent on any evaluation by an agency familiar with the unique characteristics of
the Internet,”(2) the CDA imposes criminal penalties, and the Court has never
decided whether indecent broadcasts “would justify a criminal prosecution,” and (3)
radio and television, unlike the Internet, have, “as a matter of history ... ‘received the
most limited First Amendment protection, ... in large part because warnings could not
adequately protect the listener from unexpected program content.... [On the Internet],
the risk of encountering indecent material by accident is remote because a series of
affirmative steps is required to access specific material.”
In 1998, Congress enacted the Child Online Protection Act (COPA), P.L. 105-
277, title XIV, to replace the CDA. COPA differs from the CDA in two main
respects: (1) it prohibits communication to minors only of “material that is harmful
to minors,” rather than material that is indecent, and (2) it applies only to
communications for commercial purposes on publicly accessible websites. COPA
has not taken effect, because a constitutional challenge was brought and the district
court, finding a likelihood that the plaintiffs would prevail, issued a preliminary
96
(...continued)
the fine on non-constitutional grounds. CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008).
For additional information, including an analysis of whether prohibiting the broadcast of
“indecent” words regardless of context would violate the First Amendment, see CRS Report
RL32222, Regulation of Broadcast Indecency: Background and Legal Analysis, by Henry
Cohen and Kathleen Ann Ruane.
97
For additional information, see CRS Report 95-804, Obscenity and Indecency:
Constitutional Principles and Federal Statutes, by Henry Cohen. Restrictions on cable
television intended to protect children are discussed in that report and also in this report
under “Radio and Television.”
98
Sable Communications of California, Inc. v. Federal Communications Commission, 492
U.S. 115 (1989); Dial Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991),
cert. denied, 502 U.S. 1072 (1992).
99
521 U.S. 844 (1997).
100
Id. at 874-875.
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injunction against enforcement of the statute, pending a trial on the merits. The Third
Circuit affirmed, but, in 2002, in Ashcroft v. American Civil Liberties Union, the
Supreme Court held that COPA’s use of community standards to define “material
that is harmful to minors” does not by itself render the statute unconstitutional. The
Supreme Court, however, did not remove the preliminary injunction against
enforcement of the statute, and remanded the case to the Third Circuit to consider
whether it is unconstitutional nonetheless. In 2003, the Third Circuit again found the
plaintiffs likely to prevail and affirmed the preliminary injunction. In 2004, the
Supreme Court affirmed the preliminary injunction because it found that the
government had failed to show that filtering prohibited material would not be as
effective in accomplishing Congress’s goals. It remanded the case for trial, however,
and did not foreclose the district court from concluding otherwise.101 On March 22,
2007, the district court found COPA unconstitutional and issued a permanent
injunction against its enforcement. The grounds for its decision were that “COPA
is not narrowly tailored to Congress’ compelling interest,” the Attorney General
“failed to meet his burden of showing that COPA is the least restrictive, most
effective alternative in achieving the compelling interest,” and “COPA is
impermissibly vague and overbroad.”102
Children’s First Amendment Rights
In a case upholding high school students’ right to wear black arm bands to
protest the war in Vietnam, the Supreme Court held that public school students do
not “shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate.”103 They do, however, shed them to some extent. The Supreme
Court has upheld the suspension of a student for using a sexual metaphor in a speech
nominating another student for a student office.104 It has upheld censorship of a
student newspaper produced as part of the school curriculum.105 (Lower courts have
indicated that non-school-sponsored student writings may not be censored.106)
A plurality of the justices found that a school board must be permitted “to
establish and apply their curriculum in such a way as to transmit community values,”
but that it may not remove school library books in order to deny access to ideas with
101
American Civil Liberties Association v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999), aff’d,
217 F.3d 162 (3d Cir. 2000), vacated and remanded sub nom. Ashcroft v. American Civil
Liberties Union, 535 U.S. 564 (2002), aff’d on remand, 322 F.3d 240 (3d Cir. 2003), aff’d
and remanded, 542 U.S. 656 (2004). See also, footnote 8 of this report.
102
American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa., March 27,
2007).
103
Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506
(1969).
104
Bethel School District No. 463 v. Fraser, 478 U.S. 675 (1986).
105
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
106
E.g., Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988); Romano v. Harrington, 725 F.
Supp. 687 (E.D. N.Y. 1989).
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which it disagrees for political or religious reasons.107 The Supreme Court has also
held that Congress may not prohibit people 17 or younger from making contributions
to political candidates and contributions or donations to political parties.108 Most
recently, in Morse v. Frederick, the Court held that a school could punish a pupil for
displaying a banner that read, “BONG HiTS 4 JESUS,” because these words could
reasonably be interpreted as “promoting illegal drug use.”109 The Court indicated that
it might have reached a different result if the banner had addressed the issue of “the
criminalization of drug use or possession.”110 Justice Alito, joined by Justice
Kennedy, wrote a concurring opinion stating that they had joined the majority
opinion “on the understanding that (a) it goes no further than to hold that a public
school may restrict speech that a reasonable observer would interpret as advocating
illegal drug use and (b) it provides no support for any restriction on speech that can
plausibly be interpreted as commenting on any political or social issue, including
speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana
for medicinal use.’”111 As Morse v. Frederick was a 5-to-4 decision, Justices Alito’s
and Kennedy’s votes were necessary for a majority and therefore should be read as
limiting the majority opinion with respect to future cases.
Time, Place, and Manner Restrictions
Even speech that enjoys the most extensive First Amendment protection may
be subject to “regulations of the time, place, and manner of expression which are
content-neutral, are narrowly tailored to serve a significant government interest, and
leave open ample alternative channels of communication.”112 In the case in which
this language appears, the Supreme Court allowed a city ordinance that banned
picketing “before or about” any residence to be enforced to prevent picketing outside
the residence of a doctor who performed abortions, even though the picketing
occurred on a public street. The Court noted that “[t]he First Amendment permits the
government to prohibit offensive speech as intrusive when the ‘captive’ audience
cannot avoid the objectionable speech.”113
Thus, the Court, while acknowledging that music, as a form of expression and
communication, is protected under the First Amendment, upheld volume restrictions
107
Board of Education, Island Trees School District v. Pico, 457 U.S. 853, 864 (1982). The
Court noted that “nothing in our decision today affects in any way the discretion of a local
school board to choose books to add to the libraries of their schools.” Id. at 871.
108
McConnell v. Federal Election Commission, 540 U.S. 93, 231-232 (2003).
109
127 S. Ct. 2618, 2624 (2007).
110
Id. at 2625.
111
Id. at 2636.
112
Frisby v. Schultz, 487 U.S. 474, 481 (1988).
113
Id. at 487.
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placed on outdoor music in order to prevent intrusion on those in the area.114 Other
significant governmental interests, besides protection of captive audiences, may
justify content-neutral time, place, and manner restrictions. For example, in order to
prevent crime and maintain property values, a city may place zoning restrictions on
“adult” theaters and bookstores.115 And, in order to maintain the orderly movements
of crowds at a state fair, a state may limit the distribution of literature to assigned
locations.116
However, a time, place, and manner restriction will not be upheld in the absence
of sufficient justification or if it is not narrowly tailored. Thus, the Court held
unconstitutional a total restriction on displaying flags or banners on public sidewalks
surrounding the Supreme Court.117 And a time, place, and manner restriction will not
be upheld if it fails to “leave open ample alternative channels for communication.”
Thus, the Court held unconstitutional an ordinance that prohibited the display of
signs from residences, because “[d]isplaying a sign from one’s own residence often
carries a message quite distinct from placing the same sign someplace else....”118
When a court issues an injunction that restricts the time, place, or manner of a
particular form of expression, because prior restraint occurs, “a somewhat more
stringent application of general First Amendment principles” is required than is
required in the case of a generally applicable statute or ordinance that restricts the
time, place, or manner of speech.119 Instead of asking whether the restrictions are
“narrowly tailored to serve a significant governmental interest,” a court must ask
“whether the challenged provisions of the injunction burden no more speech than
necessary to serve a significant government interest.”120 Applying this standard, the
Supreme Court, in Madsen v. Women’s Health Center, Inc., upheld a state court
injunction that had ordered the establishment of a 36-foot buffer zone on a public
street outside a particular health clinic that performed abortions. The Court in this
case also upheld an injunction against noise during particular hours, but found that
114
Ward v. Rock Against Racism, 491 U.S. 781 (1989).
115
Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976); Renton v. Playtime
Theaters, Inc., 475 U.S. 41 (1986). Although singling out “adult” material might appear to
be a content-based distinction, the Court in Renton said that regulations of speech are
content-neutral if they “are justified without reference to the content of the regulated
speech.” 475 U.S. at 48 (emphasis in original). Zoning restrictions are justified as measures
to “prevent crime, protect the city’s retail trade, maintain property values, and generally
‘protec[t] and preserv[e] the quality of [the city’s] neighborhoods, commercial districts, and
the quality of urban life,’ not to suppress the expression of unpopular views.” Id.
116
Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981).
117
United States v. Grace, 461 U.S. 171 (1983).
118
City of Ladue v. Gilleo, 512 U.S. 43 (1994).
119
Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 765 (1994). In this case, the
Court held that the challenged injunction was content-neutral, even though it was directed
at abortion protestors, because its purpose was to protect patients, not to interfere with the
protestors’ message.
120
Id. This is not “prior restraint analysis,” which courts apply to content-based injunctions;
see, “Prior Restraint,” supra.
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a “broad prohibition on all ‘images observable’ burdens speech more than necessary
to achieve the purpose of limiting threats to clinic patients or their families.”121 It
also struck down a prohibition on all uninvited approaches of persons seeking the
services of the clinic, and a prohibition against picketing, within 300 feet of the
residences of clinic staff. The Court distinguished the 300-foot restriction from the
ordinance it had previously upheld that banned picketing “before or about” any
residence.122
In Schenck v. Pro-Choice Network of Western New York, the Court applied
Madsen to another injunction that placed restrictions on demonstrating outside an
abortion clinic.123 The Court upheld the portion of the injunction that banned
“demonstrating within fifteen feet from either side or edge of, or in front of,
doorways or doorway entrances, parking lot entrances, driveways and driveway
entrances of such facilities” — what the Court called “fixed buffer zones.” It struck
down a prohibition against demonstrating “within fifteen feet of any person or
vehicles seeking access to or leaving such facilities” — what it called “floating buffer
zones.” The Court cited “public safety and order” in upholding the fixed buffer
zones, but it found that the floating buffer zones “burden more speech than is
necessary to serve the relevant governmental interests” because they make it “quite
difficult for a protester who wishes to engage in peaceful expressive activity to know
how to remain in compliance with the injunction.” The Court also upheld a
“provision, specifying that once sidewalk counselors who had entered the buffer
zones were required to ‘cease and desist’ their counseling, they had to retreat 15 feet
from the people they had been counseling and had to remain outside the boundaries
of the buffer zones.”
In Hill v. Colorado, the Court upheld a Colorado statute that makes it unlawful,
within 100 feet of the entrance to any health care facility, to “knowingly approach”
within eight feet of another person, without that person’s consent, “for the purpose
of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest,
education, or counseling with such other person.”124 This decision is significant
because it upheld a statute that applies to everyone, and not, as in Madsen and
Schenck, merely an injunction directed to particular parties. The Court found the
statute to be a content-neutral time, place, and manner regulation of speech that
“reflects an acceptable balance between the constitutionally protected rights of law-
abiding speakers and the interests of unwilling listeners....”125 The restrictions are
content-neutral because they regulate only the places where some speech may occur,
and because they apply equally to all demonstrators, regardless of viewpoint.
Although the restrictions do not apply to all speech, the “kind of cursory
examination” that might be required to distinguish casual conversation from protest,
121
Id. at 773.
122
See, text accompanying notes 112-113, supra.
123
519 U.S. 357 (1997).
124
530 U.S. 703, 707 (2000).
125
Id. at 714.
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education, or counseling is not “problematic.”126 The law is “narrowly tailored” to
achieve the state’s interests. The eight-foot restriction does not significantly impair
the ability to convey messages by signs, and ordinarily allows speakers to come
within a normal conversational distance of their targets. Because the statute allows
the speaker to remain in one place, persons who wish to hand out leaflets may
position themselves beside entrances near the path of oncoming pedestrians, and
consequently are not deprived of the opportunity to get the attention of persons
entering a clinic.
Incidental Restrictions
Some laws are not designed to limit freedom of expression, but nevertheless can
have that effect. For example, when a National Park Service regulation prohibiting
camping in certain parks was applied to prohibit demonstrators, who were attempting
to call attention to the plight of the homeless, from sleeping in certain Washington,
D.C. parks, it had the effect of limiting the demonstrators’ freedom of expression.
Nevertheless, the Court found that application of the regulation did not violate the
First Amendment because the regulation was content-neutral and was narrowly
focused on a substantial governmental interest in maintaining parks “in an attractive
and intact condition.”127
The Supreme Court has said that an incidental restriction on speech is
constitutional if it is not “greater than necessary to further a substantial governmental
interest.”128 However, the Court has made clear that an incidental restriction, unlike
a content-based restriction, “need not be the least restrictive or least intrusive means”
of furthering a governmental interest. Rather, the restriction must be “narrowly
tailored,” and “the requirement of narrow tailoring is satisfied ‘so long as the ...
regulation promotes a substantial governmental interest that would be achieved less
effectively absent the regulation.’”129
The Court has noted that the standard for determining the constitutionality of an
incidental restriction “in the last analysis is little, if any, different from the standard
applied to time, place, or manner restrictions.”130 Thus, the restriction on camping
126
Id. at 722.
127
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
128
San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522,
537 (1987). This is known as the “O’Brien test,” which was first formulated in the case
cited in note 138, infra.
129
Ward v. Rock Against Racism, 491 U.S. 781, 798-799 (1989). This case makes clear
that, although both “strict scrutiny” and the O’Brien test for incidental restrictions require
“narrow tailoring,” “the same degree of tailoring is not required” under the two; under the
O’Brien test, “least-restrictive-alternative analysis is wholly out of place.” Id. at 798-799
n.6. It is also out of place in applying the Central Hudson commercial speech test.
130
Clark, supra note 127, 468 U.S. at 298. And, “the validity of time, place, or manner
restrictions is determined under standards very similar to those applicable in the commercial
(continued...)
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may be viewed as a restriction on conduct that only incidentally affects speech, or,
if one views sleeping in connection with a demonstration as expressive conduct, then
the restriction may be viewed as a time, place, and manner restriction on expressive
conduct. In either case, as long as the restriction is content-neutral, the same standard
for assessing its constitutionality will apply.
In 1991, the Supreme Court held that the First Amendment does not prevent the
government from requiring that dancers wear “pasties” and a “G-string” when they
dance (non-obscenely) in “adult” entertainment establishments. Indiana sought to
enforce a state statute prohibiting public nudity against two such establishments,
which asserted First Amendment protection. The Court found that the statute
proscribed public nudity across the board, not nude dancing as such, and therefore
imposed only an incidental restriction on expression.131 In 2000, the Supreme Court
again upheld the application of a statute prohibiting public nudity to an “adult”
entertainment establishment. It found that the statute was intended “to combat
harmful secondary effects,” such as “prostitution and other criminal activity.”132
In a 1994 case, the Supreme Court apparently put more teeth into the test for
incidental restrictions by remanding the case for further proceedings rather than
deferring to Congress’s judgment as to the necessity for the “must-carry” provisions
of the Cable Television Consumer Protection and Competition Act of 1992.133 To
justify an incidental restriction of speech, the Court wrote, the government “must
demonstrate that the recited harms are real, not merely conjectural, and that the
regulation will in fact alleviate these harms in a direct and material way.”134 The
Court added that its
obligation to exercise independent judgment when First Amendment rights are
implicated is not a license to reweigh the evidence de novo, or to replace
Congress’ factual predictions with our own. Rather, it is to assure that, in
formulating its judgments, Congress has drawn reasonable inferences based on
substantial evidence.135
130
(...continued)
speech context.” United States v. Edge Broadcasting Co., supra note 40, 509 U.S. at 430.
131
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).
132
Erie v. Pap’s A.M., 529 U.S. 277 (2000).
133
Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622
(1994), discussed under “Radio and Television,” below. David Cole describes Turner as
“effectively giving bite to the O’Brien standard.” He writes that, “if the Court had applied
the O’Brien standard the way it applied that standard in O’Brien, it should have upheld the
‘must carry’ rule. The O’Brien standard is extremely deferential.” The Perils of
Pragmatism, LEGAL TIMES, July 25, 1994, at S27, S30.
134
Id. at 664.
135
Id. at 666.
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Symbolic Speech
“The First Amendment literally forbids the abridgment only of ‘speech,’ but we
have long recognized that its protection does not end at the spoken or written
word.”136 Thus wrote the Supreme Court when it held that a statute prohibiting flag
desecration violated the First Amendment. Such a statute is not content-neutral if it
is designed to protect “a perceived need to preserve the flag’s status as a symbol of
our Nation and certain national ideals.”137
By contrast, the Court upheld a federal statute that made it a crime to burn a
draft card, finding that the statute served “the Government’s substantial interest in
assuring the continuing availability of issued Selective Service certificates,” and
imposed only an “appropriately narrow” incidental restriction of speech.138 Even if
Congress’s purpose in enacting the statute had been to suppress freedom of speech,
“this Court will not strike down an otherwise constitutional statute on the basis of an
alleged illicit legislative motive.”139
In 1992, in R.A.V. v. City of St. Paul, the Supreme Court struck down an
ordinance that prohibited the placing on public or private property of a symbol, such
as “a burning cross or Nazi swastika, which one knows or has reasonable grounds to
know arouses anger, alarm or resentment in others, on the basis of race, color, creed,
religion or gender.”140 Read literally, this ordinance would clearly violate the First
Amendment, because, “[i]f there is a bedrock principle underlying the First
Amendment, it is that the Government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or disagreeable.”141 In this case,
however, the Minnesota Supreme Court had construed the ordinance to apply only
to conduct that amounted to fighting words. Therefore, the question for the Supreme
Court was whether the ordinance, construed to apply only to fighting words, was
constitutional.
The Court held that it was not, because, although fighting words may be
proscribed “because of their constitutionally proscribable content,” they may not “be
made the vehicles for content discrimination unrelated to their distinctively
proscribable content.”142 Thus, the government may proscribe fighting words, but it
may not make the further content discrimination of proscribing particular fighting
words on the basis of hostility “towards the underlying message expressed.”143 In this
case, the ordinance banned fighting words that insult “on the basis of race, color,
136
Texas v. Johnson, 491 U.S. 397 (1989).
137
United States v. Eichman, 496 U.S. 310 (1990).
138
United States v. O’Brien, 391 U.S. 367, 382 (1968).
139
Id. at 383.
140
505 U.S. 377 (1992).
141
Texas v. Johnson, supra note 136, at 414.
142
R.A.V., supra note 140, at 384-385 (emphasis in original).
143
Id. at 386.
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creed, religion or gender,” but not “for example, on the basis of political affiliation,
union membership, or homosexuality.... The First Amendment does not permit St.
Paul to impose special prohibitions on those speakers who express views on
disfavored subjects.”144 This decision does not, of course, preclude prosecution for
illegal conduct that may accompany cross burning, such as trespass, arson, or threats.
As the Court put it: “St. Paul has sufficient means at its disposal to prevent such
behavior without adding the First Amendment to the fire.”145
In a subsequent case, the Supreme Court held that its opinion in R.A.V. did not
mean that statutes that impose additional penalties for crimes that are motivated by
racial hatred are unconstitutional. Such statutes imposed enhanced sentences not for
bigoted thought, but for the commission of crimes that can inflict greater and
individual and societal harm because of their bias-inspired motivation. A defendant’s
motive has always been a factor in sentencing, and even in defining crimes; “Title
VII [of the Civil Rights Act of 1964], for example, makes it unlawful for an employer
to discriminate against an employee ‘because of such individual’s race, color,
religion, sex, or national origin.’”146
In Virginia v. Black, the Court held that its opinion in R.A.V. did not make it
unconstitutional for a state to prohibit burning a cross with the intent of intimidating
any person or group of persons.147 Such a prohibition does not discriminate on the
basis of a defendant’s beliefs — “as a factual matter it is not true that cross burners
direct their intimidating conduct solely to racial or religious minorities.... The First
Amendment permits Virginia to outlaw cross burning done with the intent to
intimidate because burning a cross is a particularly virulent form of intimidation.
Instead of prohibiting all intimidating messages, Virginia may choose to regulate this
subset of intimidating messages....”148
144
Id. at 391.
145
Id. at 396.
146
Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (emphasis added by the Court to its
quotation of the statute).
147
Virginia v. Black, 538 U.S. 343 (2003). A plurality held, however, that a statute may not
presume, from the fact that a defendant burned a cross, that he had an intent to intimidate.
The state must prove that he did, as “a burning cross is not always intended to intimidate,”
but may constitute a constitutionally protected expression of opinion. Id. at 365.
148
Id. at 363.
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Compelled Speech
On occasion, the government attempts to compel speech rather than to restrict
it. For example, in Riley v. National Federation of the Blind of North Carolina, Inc.,
a North Carolina statute required professional fundraisers for charities to disclose to
potential donors the gross percentage of revenues retained in prior charitable
solicitations.149 The Supreme Court held this unconstitutional, writing
There is certainly some difference between compelled speech and compelled
silence, but in the context of protected speech, the difference is without
constitutional significance, for the First Amendment guarantees “freedom of
speech,” a term necessarily comprising the decision of both what to say and what
not to say.150
In the commercial speech context, by contrast, the Supreme Court held, in
Zauderer v. Office of Disciplinary Counsel, that an advertiser’s
constitutionally protected interest in not providing any particular factual
information in his advertising is minimal.... [A]n advertiser’s rights are
reasonably protected as long as disclosure requirements are reasonably related
to the State’s interest in preventing deception of consumers.... The right of a
commercial speaker not to divulge accurate information regarding his services
is not ... a fundamental right.151
In Zauderer, the Supreme Court upheld an Ohio requirement that advertise-
ments by lawyers that mention contingent-fee rates disclose whether percentages are
computed before or after deduction of court costs and expenses.
In Meese v. Keene, however, the Court upheld compelled disclosure in a
noncommercial context.152 This case involved a provision of the Foreign Agents
Registration Act of 1938, which requires that, when an agent of a foreign principal
seeks to disseminate foreign “political propaganda,” he must label such material with
certain information, including his identity, the principal’s identity, and the fact that
he has registered with the Department of Justice. The material need not state that it
is “political propaganda,” but one agent objected to the statute’s designating material
by that term, which he considered pejorative. The agent wished to exhibit, without
the required labels, three Canadian films on nuclear war and acid rain that the Justice
Department had determined were “political propaganda.”
149
487 U.S. 781 (1988). In Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538
U.S. 600, 605 (2003), the Supreme Court held that a fundraiser who retained 85 percent of
gross receipts from donors, but falsely represented that “a significant amount of each dollar
donated would be paid over to” a charitable organization, could be sued for fraud. “So long
as the emphasis is on what the fundraisers misleadingly convey, and not on percentage
limitations on solicitors’ fees per se, such [fraud] actions need not impermissibly chill
protected speech.” Id. at 619.
150
487 U.S. 781, 796-797 (1988) (emphasis in original).
151
471 U.S. 626, 651, 652 n.14 (1985) (emphasis in original).
152
481 U.S. 465 (1987).
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In Meese v. Keene, the Supreme Court upheld the statute’s use of the term,
essentially because it considered the term not necessarily pejorative. On the subject
of compelled disclosure, the Court wrote:
Congress did not prohibit, edit, or restrain the distribution of advocacy
materials.... To the contrary, Congress simply required the disseminators of such
material to make additional disclosures that would better enable the public to
evaluate the import of the propaganda.153
One might infer from this that compelled disclosure, in a noncommercial
context, gives rise to no serious First Amendment issue, and nothing in the Court’s
opinion would seem to refute this inference. Thus, it seems impossible to reconcile
this opinion with the Court’s holding a year later in Riley (which did not mention
Meese v. Keene) that, in a noncommercial context, there is no difference of
constitutional significance between compelled speech and compelled silence.
In Meese v. Keene, the Court did not mention earlier cases in which it had struck
down laws compelling speech in a noncommercial context. In Wooley v. Maynard,
the Court struck down a New Hampshire statute requiring motorists to leave visible
on their license plates the motto “Live Free or Die.”154 In West Virginia State Board
of Education v. Barnette, the Court held that a state may not require children to
pledge allegiance to the United States.155 In Miami Herald Publishing Co. v.
Tornillo, the Court struck down a Florida statute that required newspapers to grant
political candidates equal space to reply to the newspapers’ criticism and attacks on
their record.156
The Court decided two cases in its 1994-1995 term involving compelled speech.
In McIntyre v. Ohio Elections Commission, the Court, applying strict scrutiny, struck
down a compelled disclosure requirement by holding unconstitutional a state statute
that prohibited the distribution of anonymous campaign literature. “The State,” the
Court wrote, “may, and does, punish fraud directly. But it cannot seek to punish
fraud indirectly by indiscriminately outlawing a category of speech, based on its
content, with no necessary relationship to the danger sought to be prevented.”157
In Hurley v. Irish-American Gay Group of Boston, the Court held that
Massachusetts could not require private citizens who organize a parade to include
among the marchers a group imparting a message — in this case support for gay
rights — that the organizers do not wish to convey. Massachusetts had attempted
153
Id. at 480.
154
430 U.S. 705 (1977).
155
319 U.S. 624 (1943).
156
418 U.S. 241 (1974). In Pacific Gas & Electric Co. v. Public Utilities Commission of
California, 475 U.S. 1 (1986), the Court held that a state may not require a privately owned
utility company to include in its billing envelopes views of a consumer group with which
it disagrees. While a plurality opinion adhered to by four justices relied heavily on Tornillo,
there was not a Court majority consensus as to rationale.
157
514 U.S. 334, 357 (1995).
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to apply its statute prohibiting discrimination on the basis of sexual orientation in any
place of public accommodations, but the Court held that parades are a form of
expression, and the state’s “[d]isapproval of a private speaker’s statement does not
legitimatize use of the Commonwealth’s power to compel the speaker to alter the
message by including one more acceptable to others.”158
In Glickman v. Wileman Brothers & Elliott, Inc., the Supreme Court upheld the
constitutionality of marketing orders promulgated by the Secretary of Agriculture that
imposed assessments on fruit growers to cover the cost of generic advertising of
fruits.159 The First Amendment, the Court held, does not preclude the government
from “compel[ling] financial contributions that are used to fund advertising,”
provided that such contributions do not finance “political or ideological” views.160
In United States v. United Foods, Inc., the Court struck down a federal statute
that mandated assessments on handlers of fresh mushrooms to fund advertising for
the product.161 The Court did not apply the Central Hudson commercial speech test,
but rather found “that the mandated support is contrary to First Amendment
principles set forth in cases involving expression by groups which include persons
who object to the speech, but who, nevertheless, must remain members of the group
by law or necessity.”162 It distinguished Glickman on the ground that “[i]n Glickman
the mandated assessments for speech were ancillary to a more comprehensive
program restricting marketing authority. Here, for all practical purposes, the
advertising itself, far from being ancillary, is the principal object of the regulatory
scheme.”163
In Johanns v. Livestock Marketing Association, the Supreme Court upheld a
federal statute that directed the Secretary of Agriculture to use funds raised by an
assessment on cattle sales and importation to promote the marketing and
consumption of beef and beef products.164 The Court found that, unlike in Glickman
and United Foods, where “the speech was, or was presumed to be, that of an entity
other than the government itself,” in Johanns the promotional campaign constituted
the government’s own speech and therefore was “exempt from First Amendment
scrutiny.”165 It did not matter “whether the funds for the promotions are raised by
158
515 U.S. 557, 581 (1995).
159
521 U.S. 457 (1997).
160
Id., 521 U.S. at 471, 472. The Court found that the marketing orders did not raise a First
Amendment issue, but “simply a question of economic policy for Congress and the
Executive to resolve.” The Central Hudson test (see “Commercial Speech,” above),
therefore, was inapplicable. Id. at 474.
161
533 U.S. 405 (2001).
162
Id. at 413.
163
Id. at 411.
164
544 U.S. 550 (2005).
165
Id. at 559, 553.
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general taxes or through targeted assessment.”166 As for the plaintiffs’ contention
“that crediting the advertising to ‘America’s Beef Producers’” attributes the speech
to them, the Court found that, because the statute does not require such attribution,
it does not violate the First Amendment, but the plaintiffs’ contention might form the
basis for challenging the manner in which the statute is applied.167
Radio and Television
Radio and television broadcasting has more limited First Amendment protection
than other media. In Red Lion Broadcasting Co. v. Federal Communications
Commission, the Supreme Court invoked what has become known as the “scarcity
rationale” to justify this discrimination:
Where there are substantially more individuals who want to broadcast than there
are frequencies to allocate, it is idle to posit an unabridgeable First Amendment
right to broadcast comparable to the right of every individual to speak, write, or
publish.168
The Court made this statement in upholding the constitutionality of the Federal
Communication Commission’s “fairness doctrine,” which required broadcast media
licensees to provide coverage of controversial issues of interest to the community and
to provide a reasonable opportunity for the presentation of contrasting viewpoints on
such issues.
Later, in Federal Communications Commission v. Pacifica Foundation, the
Court upheld the power of the FCC “to regulate a radio broadcast that is indecent but
not obscene.”169 The Court cited two distinctions between broadcasting and other
media: “First, the broadcast media have established a uniquely pervasive presence in
the lives of all Americans ... confront[ing] the citizen, not only in public, but also in
the privacy of the home,” and “Second, broadcasting is uniquely accessible to
children.”170
In Turner Broadcasting System, Inc. v. Federal Communications Commission,
the Court declined to question the continuing validity of the scarcity rationale, but
held that “application of the more relaxed standard of scrutiny adopted in Red Lion
166
Id. at 562.
167
Id. at 564-566.
168
395 U.S. 367, 388 (1969).
169
438 U.S. 726, 729 (1978).
170
Id. at 748-749. In Action for Children’s Television v. Federal Communications
Commission (ACT III), 58 F.3d 654, 660 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S.
1043 (1996), the court of appeals, in upholding a ban on indecent broadcasts from 6 a.m. to
10 p.m., wrote: “While we apply strict scrutiny to regulations of this kind regardless of the
medium affected by them, our assessment of whether section 16(a) survives that scrutiny
must necessarily take into account the unique context of the broadcast media.” See,
“Speech Harmful to Children,” supra.
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and other broadcast cases is inapt when determining the First Amendment validity
of cable regulation.”171 In Turner, however, the Court found the “must-carry”
provisions of the Cable Television Consumer Protection and Competition Act of
1992, which require cable television systems to devote a portion of their channels to
the transmission of local broadcast television stations, to be content-neutral in
application and subject only to the test for incidental restrictions on speech.
Attempting to apply this test, however, the Court found “genuine issues of material
fact still to be resolved” as to whether “broadcast television is in jeopardy” and as to
“the actual effects of must-carry on the speech of cable operators and cable
programmers.”172 It therefore remanded the case for further proceedings.173
In Denver Area Educational Telecommunications Consortium, Inc. v. Federal
Communications Commission, a plurality of the Supreme Court (four justices)
apparently retreated from the Court’s position in Turner that cable television is
entitled to full First Amendment protection.174 In Part II of its opinion, the plurality
upheld § 10(a) of the Cable Television Consumer Protection and Competition Act
of 1992, 47 U.S.C. § 532(h), which permits cable operators to prohibit indecent
material on leased access channels. (The Cable Communications Policy Act of 1984
had required cable operators to provide leased access and public access channels free
of operator editorial control.) In upholding § 10(a), the Court, citing Pacifica, noted
that cable television “is as ‘accessible to children’ as over-the-air broadcasting,” has
also “established a uniquely pervasive presence in the lives of all Americans,” and
can also “‘confron[t] the citizen’ in ‘the privacy of the home,’ ... with little or no
prior warning.”175 It also noted that its “distinction in Turner, ... between cable and
broadcast television, relied on the inapplicability of the spectrum scarcity problem
to cable,” but that that distinction “has little to do with a case that involves the effects
of television viewing on children.”176 Applying something less than strict scrutiny,
the Court concluded “that § 10(a) is a sufficiently tailored response to an
extraordinarily important problem.”177
In Part III of Denver Area, a majority of the Court (six justices) struck down
§ 10(b) of the 1992 Act, 47 U.S.C. § 532(j), which required cable operators, if they
do not prohibit such programming on leased access channels, to segregate it on a
single channel and block that channel unless the subscriber requests access to it in
writing. In this part of the opinion, the Court seemed to apply strict scrutiny, finding
171
Turner, supra note 133, 512 U.S. at 639.
172
Id. at 667-668.
173
On remand, the lower court upheld the must-carry rules, and the Supreme Court affirmed,
finding “that the must-carry provisions further important governmental interests; and ... do
not burden substantially more speech than necessary to further those interests.” Turner
Broadcasting System, Inc. v. Federal Communications Commission, 520 U.S. 180, 185
(1997).
174
518 U.S. 727 (1996).
175
Id. at 745.
176
Id. at 748.
177
Id. at 743.
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“that protection of children is a ‘compelling interest,’” but “that, not only is it not a
‘least restrictive alternative,’ and is not ‘narrowly tailored’ to meet its legitimate
objective, it also seems considerably ‘more extensive than necessary.’”178
In Part IV, which only three justices joined, the Court struck down § 10(c), 42
U.S.C. § 531 note, which permitted cable operators to prohibit indecent material on
public access channels. Without specifying the level of scrutiny they were applying,
the justices concluded “that the Government cannot sustain its burden of showing
that § 10(c) is necessary to protect children or that it is appropriately tailored to
secure that end.”179
In United States v. Playboy Entertainment Group, Inc., the Supreme Court made
clear, as it had not in Denver Consortium, that strict scrutiny applies to content-based
speech restriction on cable television.180 The Court struck down a federal statute
designed to “shield children from hearing or seeing images resulting from signal
bleed,” which refers to blurred images or sounds that come through to non-
subscribers. The statute required cable operators, on channels primarily dedicated
to sexually oriented programming, either to fully scramble or otherwise fully block
such channels, or to not provide such programming when a significant number of
children are likely to be viewing it, which, under an FCC regulation meant to
transmit the programming only from 10 p.m. to 6 a.m. The Court apparently
assumed that the government had a compelling interest in protecting children from
sexually oriented signal bleed, but found that Congress had not used the least
restrictive means to do so. Congress in fact had enacted another provision that was
less restrictive and that served the government’s purpose. This other provision
requires that, upon request by a cable subscriber, a cable operator, without charge,
fully scramble or fully block any channel to which a subscriber does not subscribe.
Freedom of Speech and Government Funding
The Supreme Court has held that Congress, incident to its power to provide for
the general welfare (Art. I, § 8, cl. 1),
may attach conditions on the receipt of federal funds, and has repeatedly
employed the power “to further broad policy objectives by conditioning receipt
of federal moneys upon compliance with federal statutory and administrative
directives.” ... The breadth of this power was made clear in United States v.
Butler, 297 U.S. 1, 66 (1936), where the Court ... determined that “the power of
Congress to authorize expenditure of public moneys for public purposes is not
limited by the direct grants of legislative power found in the Constitution.”
Thus, objectives not thought to be within Article I’s “enumerated legislative
178
Id. at 755.
179
Id. at 766.
180
529 U.S. 803 (2000).
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fields,” id., at 65, may nevertheless be attained through the use of the spending
power and the conditional grant of federal funds.181
This means that Congress may regulate matters by attaching conditions to the
receipt of federal funds that it might lack the power to regulate directly. However,
the Court added, “other constitutional provisions may provide an independent bar to
the conditional grant of federal funds.” One of these other constitutional provisions
is the First Amendment. The Court has held, in fact, that the government “may not
deny a benefit to a person on a basis that infringes his constitutionally protected
interests — especially, his interest in freedom of speech.”182 Similarly, in Federal
Communications Commission v. League of Women Voters, the Court declared
unconstitutional a federal statute that prohibited noncommercial television and radio
stations that accepted federal funds from engaging in editorializing, even with
nonfederal funds.183
Congress would have the authority to prohibit television and radio stations from
using the federal funds they accept to engage in editorializing, as the Court would
view Congress in that case not as limiting speech, but as choosing to fund one
activity to the exclusion of another.184 “A refusal to fund protected activity [i.e.,
speech], without more, cannot be equated with the imposition of a ‘penalty’ on that
activity.”185 In Rust v. Sullivan, the case in which this quotation appears, the Court
upheld a “gag order” that prohibited family planning clinics that accept federal funds
from engaging in abortion counseling or referrals. The Court found that, in this case,
“the government is not denying a benefit to anyone, but is instead simply insisting
that public funds be spent for purposes for which they were authorized.”186
In Rust v. Sullivan, the Court also indicated that it will allow Congress to
condition the receipt of federal funds on acceptance of a limitation on the use of
nonfederal funds as well as of federal funds, but apparently will not allow Congress
to limit the use of nonfederal funds outside the project that accepts the federal
funds.187 Justice Blackmun, dissenting, feared that, “[u]nder the majority’s
reasoning, the First Amendment could be read to tolerate any governmental
181
South Dakota v. Dole, 483 U.S. 203, 206-207 (1987).
182
Perry v. Sindermann, 408 U.S. 593, 597 (1972) (striking down state university’s refusal
to renew teacher’s contract because of his public criticism of the college administration).
183
468 U.S. 364 (1984).
184
See, id. at 400.
185
Rust v. Sullivan, 500 U.S. 173, 193 (1991).
186
Id. at 196.
187
Id. at 196. Thus, a grantee who accepts federal funds to operate a family planning clinic
may be prohibited from using nonfederal funds to provide abortion counseling through the
clinic, but may not be prohibited from using nonfederal funds to provide abortion counseling
outside the clinic.
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restriction upon an employee’s speech so long as that restriction is limited to the
funded workplace.”188
The Court also “recognized that the university is a traditional sphere of free
expression so fundamental to the functioning of our society that the Government’s
ability to control speech within that sphere by means of conditions attached to the
expenditure of Government funds is restricted by the vagueness and overbreadth
doctrines of the First Amendment.”189
In National Endowment for the Arts v. Finley, the Supreme Court upheld the
constitutionality of a federal statute (20 U.S.C. § 954(d)(1)) requiring the NEA, in
awarding grants, to “tak[e] into consideration general standards of decency and
respect for the diverse beliefs and values of the American public.”190 The Court
acknowledged that, if the statute were “applied in a manner that raises concern about
the suppression of disfavored viewpoints,”191 then such application might be
unconstitutional. The statute on its face, however, is constitutional because it
“imposes no categorical requirement,” being merely “advisory.”192 “Any content-
based considerations that may be taken into account in the grant-making process are
a consequence of the nature of arts funding.... The ‘very assumption’ of the NEA is
that grants will be awarded according to the ‘artistic worth of competing
applications,’ and absolute neutrality is simply ‘inconceivable.’”193
The Court also found that the terms of the statute, “if they appeared in a criminal
statute or regulatory scheme, ... could raise substantial vagueness concerns.... But
when the Government is acting as patron rather than as sovereign, the consequences
of imprecision are not constitutionally severe.”194
In Legal Services Corporation v. Velazquez, the Court struck down a provision
of the Legal Services Corporation Act that prohibited recipients of Legal Services
Corporation (LSC) funds (i.e., legal-aid organizations that provide lawyers to the
poor in civil matters) from representing a client who seeks “to amend or otherwise
challenge existing [welfare] law.”195 This meant that, even with non-federal funds,
a recipient of federal funds could not argue that a state welfare statute violated a
federal statute or that a state or federal welfare law violated the U.S. Constitution.
188
Id. at 213 (emphasis in original).
189
Id. at 200.
190
524 U.S. 569, 572 (1998).
191
Id. at 587.
192
Id. at 581. Justice Scalia, in a concurring opinion, claimed that this interpretation of the
statute “gutt[ed] it.” He believed that the statute “establishes content- and viewpoint-based
criteria upon which grant applications are to be evaluated. And that is perfectly
constitutional.” Id. at 590.
193
Id. at 585.
194
Id. at 588-589.
195
531 U.S. 533 (2001).
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If a case was underway when such a challenge became apparent, the attorney had to
withdraw.
The Supreme Court distinguished this situation from that in Rust v. Sullivan on
the ground “that the counseling activities of the doctors under Title X amounted to
governmental speech,” whereas “an LSC-funded attorney speaks on behalf of the
client in a claim against the government for welfare benefits.”196 Furthermore, the
restriction in this case “distorts the legal system” by prohibiting “speech and
expression upon which courts must depend for the proper exercise of the judicial
power,” and thereby is “inconsistent with accepted separation-of-powers
principles.”197
In United States v. American Library Association,198 the Supreme Court
followed Rust v. Sullivan, and upheld the Children’s Internet Protection Act, which
requires schools and libraries that accept federal funds to purchase computers used
to access the Internet to block or filter minors’ Internet access to visual depictions
that are obscene, child pornography, or “harmful to minors”; and to block or filter
adults’ Internet access to visual depictions that are obscene or child pornography.
Blocking or filtering technology may be disabled, however, “to enable access for
bona fide research or other lawful purpose.”
The plurality noted that “Congress may not ‘induce’ the recipient [of federal
funds] ‘to engage in activities that would themselves be unconstitutional.’”199 The
plurality therefore viewed the question before the Court as “whether [public] libraries
would violate the First Amendment by employing the filtering software that CIPA
requires.”200 Does CIPA, in other words, effectively violate library patrons rights?
The plurality concluded that it does not, as “Internet access in public libraries is
neither a ‘traditional’ or a ‘designated’ public forum,”201and that therefore it would
not be appropriate to apply strict scrutiny to determine whether the filtering
requirements are constitutional.
But the plurality also considered whether CIPA imposes an unconstitutional
condition on the receipt of federal assistance — in other words, does it violate public
libraries’ rights by requiring them to limit their freedom of speech if they accept
federal funds? The plurality found that, assuming that government entities have First
Amendment rights (it did not decide the question), CIPA does not infringe them.
This is because CIPA does not deny a benefit to libraries that do not agree to use
filters; rather, as in Rust v. Sullivan, the statute “simply insist[s] that public funds be
196
Id. at 541, 542.
197
Id. at 544, 545, 546.
198
539 U.S. 194 (2003).
199
Id. at 203.
200
Id.
201
Id. at 205.
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spent for the purposes for which they were authorized.”202 “CIPA does not ‘penalize’
libraries that choose not to install such software, or deny them the right to provide
their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress’
decision not to subsidize their doing so.”203
The Court distinguished Velazquez on the ground that public libraries have no
role comparable to that of legal aid attorneys “that pits them against the Government,
and there is no comparable assumption that they must be free of any conditions that
their benefactors might attach to the use of donated funds or other assistance.”204
In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the Supreme
Court upheld the Solomon Amendment, which provides that, in the Court’s
summary, “if any part of an institution of higher education denies military recruiters
access equal to that provided other recruiters, the entire institution would lose certain
federal funds.”205 FAIR, the group that challenged the Solomon Amendment, is an
association of law schools that barred military recruiting on their campuses because
of the military’s discrimination against homosexuals. FAIR challenged the Solomon
Amendment as violating the First Amendment because it forced schools to choose
between enforcing their nondiscrimination policy against military recruiters and
continuing to receive specified federal funding.
The Court first rejected an interpretation of the Solomon Amendment that would
have avoided the constitutional issue; under this interpretation, “a school excluding
military recruiters would comply with the Solomon Amendment so long as it also
excluded any other employer that violates its nondiscrimination policy.”206 The
Court instead construed the Solomon Amendment to require schools to allow the
military the same access as any other employer, including employers who do not
discriminate and whom the schools allow on campus.
Interpreting the Solomon Amendment as such, the Court concluded: “Because
the First Amendment would not prevent Congress from directly imposing the
Solomon Amendment’s access requirement, the statute does not place an
unconstitutional condition on the receipt of federal funds.”207 The Court added: “The
Solomon Amendment neither limits what law schools may say nor requires them to
say anything.... It affects what law schools must do — afford equal access to military
recruiters — not what they may or may not say.”208 The law schools’ conduct in
barring military recruiters, the Court found, “is not inherently expressive,” and,
202
Id. at 211.
203
Id. at 212.
204
Id. at 213 (emphasis in original).
205
547 U.S. 47, 51 (2006).
206
Id. at 56.
207
Id. at 60. The Court stated that Congress’s authority to directly require campus access
for military recruiters comes from its Article I, section 8, powers to provide for the common
defense, to raise and support armies, and to provide and maintain a navy. Id. at 58.
208
Id. at 60.
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therefore, unlike flag burning, for example, is not “symbolic speech.”209 Applying
the O’Brien test for restrictions on conduct that have an incidental effect on speech,
the Court found that the Solomon Amendment clearly “promotes a substantial
government interest that would be achieved less effectively absent the regulation.”210
The Court also found that the Solomon Amendment did not unconstitutionally
compel schools to speak, or even to host or accommodate the government’s message.
As for compelling speech, law schools must “send e-mails and post notices on behalf
of the military to comply with the Solomon Amendment ... This sort of recruiting
assistance, however, is a far cry from the compelled speech in Barnette and
Wooley.211 ... [It] is plainly incidental to the Solomon Amendment’s regulation of
conduct.” As for forcing one speaker to host or accommodate another, “[t]he
compelled speech violation in each of our prior cases ... resulted from the fact that
the complaining speaker’s own message was affected by the speech it was forced to
accommodate.”212 By contrast, the Court wrote, “Nothing about recruiting suggests
that law schools agree with any speech by recruiters, and nothing in the Solomon
Amendment restricts what the law schools may say about the military’s policies.”213
Finally, the Court found that the Solomon Amendment was not analogous to the
New Jersey law that had required the Boy Scouts to accept a homosexual
scoutmaster, and which the Supreme Court struck down as violating the Boy Scouts’
“right of expressive association.”214 Recruiters, unlike the scoutmaster, are “outsiders
who come onto campus for the limited purpose of trying to hire students — not to
become members of the school’s expressive association.”215
Free Speech Rights of Government Employees
and Government Contractors
Government Employees
In Pickering v. Board of Education, the Supreme Court said that “it cannot be
gainsaid that the State has interests as an employer in regulating the speech of its
employees that differ significantly from those it possesses in connection with the
regulation of speech of the citizenry in general.”216 The First Amendment, however,
209
Id. at 64, 65. The flag burning cases are quoted at notes 136 and 137, supra.
210
Id at 67. The O’Brien test is quoted in the text accompanying note 128, supra.
211
Id at 61, 62. Barnette and Wooley are cited, respectively, in notes 155 and 154, supra.
212
Id. at 63. The Court cited Hurley, supra note 158, and Tornillo, supra note 156.
213
Id. at 65.
214
Id. at 68, quoting Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000).
215
Id. at 69.
216
391 U.S. 563, 568 (1968).
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“protects a public employee’s right, in certain circumstances, to speak as a citizen
addressing matters of public concern.”217
In Pickering, the Supreme Court held it unconstitutional for a school board to
fire a teacher for writing a letter to a local newspaper criticizing the administration
of the school system. The Court did not, however, hold that the teacher had the same
right as a private citizen to write such a letter. Rather, because the teacher had
spoken as a citizen on a matter of public concern, the Court balanced “the interests
of the teacher, as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees.”218 In this case, the Court found that the
statements in the letter were
in no way directed towards any person with whom appellant [the teacher] would
normally be in contact in the course of his daily work as a teacher. Thus no
question of maintaining either discipline by immediate superiors or harmony
among coworkers is presented here. Appellant’s employment relationships with
the Board ... are not the kind of close working relationships for which it can
persuasively be claimed that personal loyalty and confidence are necessary to
their proper functioning.219
In Arnett v. Kennedy, the Supreme Court again balanced governmental interests
and employee rights, and this time sustained the constitutionality of a federal statute
that authorized removal or suspension without pay of an employee “for such cause
as will promote the efficiency of the service,” where the “cause” cited was an
employee’s speech.220 The employee’s speech in this case, however, consisted in
falsely and publicly accusing the director of his agency of bribery. The Court
interpreted the statute to proscribe
only that public speech which improperly damages and impairs the reputation
and efficiency of the employing agency, and it thus imposes no greater controls
on the behavior of federal employees as are necessary for the protection of the
Government as employer. Indeed, the Act is not directed at speech as such, but
at employee behavior, including speech, which is detrimental to the efficiency
of the employing agency.221
In Givhan v. Western Line Consolidated School District, the Court upheld the
First Amendment right of a public school teacher to complain to the school principal
about “employment policies and practices at [the] school which [she] conceived to
be racially discriminatory in purpose or effect.”222
217
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
218
Id., quoting Pickering, supra note 216, 391 U.S. at 568.
219
Pickering, supra note 216, 391 U.S. at 569-570.
220
416 U.S. 134, 140 (1974).
221
Id. at 162.
222
439 U.S. 410, 413 (1979).
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In Connick v. Myers, an assistant district attorney was fired for insubordination
after she circulated a questionnaire among her peers soliciting views on matters
relating to employee morale.223 The Supreme Court upheld the firing, distinguishing
Pickering on the ground that, in that case, unlike in this one, the fired employee had
engaged in speech concerning matters of public concern:
When employee expression cannot be fairly considered as relating to any matter
of political, social, or other concern to the community, government officials
should enjoy a wide latitude in managing their offices, without intrusive
oversight by the judiciary in the name of the First Amendment....
We do not suggest, however, that Myers’ speech, even if not touching upon a
matter of public concern, is totally beyond the protection of the First
Amendment. “[T]he First Amendment does not protect speech and assembly
only to the extent it can be characterized as political....” ... We hold only that
when a public employee speaks not as a citizen upon matters of public concern,
but as an employee upon matters only of personal interest, absent the most
unusual of circumstances, a federal court is not the appropriate forum in which
to review the wisdom of a personnel decision taken by a public agency allegedly
in reaction to the employee’s behavior.224
In Connick v. Myers, however, one question in Myers’ questionnaire did touch
upon a matter of public concern, and, to this extent, Myers’ speech was entitled to
Pickering balancing to determine whether it was protected by the First Amendment.
The Court also considered that the questionnaire interfered with working
relationships, was prepared and distributed at the office, arose out of an employment
dispute, and was not circulated to obtain useful research. The Court repeated
something it had said in Pickering: it did “not deem it either appropriate or feasible
to attempt to lay down a general standard against which all such statements may be
judged.”225
In Rankin v. McPherson, the Court upheld the right of an employee to remark,
after hearing of an attempt on President Reagan’s life, “If they go for him again, I
hope they get him.”226 The Court considered the fact that the statement dealt with a
matter of public concern, did not amount to a threat to kill the President, did not
interfere with the functioning of the workplace, and was made in a private
conversation with another employee and therefore did not discredit the office.
Furthermore, as the employee’s duties were purely clerical and encompassed “no
223
461 U.S. 138 (1983).
224
Id. at 146-147. Subsequently, in Garcetti v. Ceballos, supra note 217, 547 U.S. at 418,
the Court wrote that, if an employee did not speak as a citizen on a matter of public concern,
then “the employee has no First Amendment cause of action based on his or her employer’s
reaction to the speech. See Connick, supra, at 147.”
225
Id. at 154.
226
483 U.S. 378, 380 (1987).
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confidential, policymaking, or public contact role,” her remark did not indicate that
she was “unworthy of employment.”227
These Supreme Court cases indicate the relevant factors in determining whether
a government employee’s speech is protected by the First Amendment. It should be
emphasized that the Court considers the time, place, and manner of expression.228
Thus, if an employee made political speeches on work time, such that they interfered
with his or others’ job performance, he could likely be fired as “unworthy of
employment.” At the same time, he could not be fired for the particular political
views he expressed, unless his holding of those views made him unfit for the job.
Thus, a governmental employer could not allow employees to make speeches in
support of one political candidate on work time, but not allow employees to make
speeches in support of that candidate’s opponent. But a Secret Service agent
assigned to guard the President would not have the same right as the clerical worker
in Rankin to express the hope that the President would be assassinated.
In Waters v. Churchill, a plurality of justices concluded that, in applying the
Connick test — “what the speech was, in what tone it was delivered, what the
listener’s reactions were” — the court should not ask the jury to determine the facts
for itself.229 Rather, the court should apply the test “to the facts as the employer
reasonably found them to be.”230 That is, the employer need not “come to its factual
conclusions through procedures that substantially mirror the evidentiary rules used
in court,” but it may not come to them based on no evidence, or on “extremely weak
evidence when strong evidence is clearly available.”231
In United States v. National Treasury Employees Union (NTEU), the Court
struck down a law that prohibited federal employees from accepting any
compensation for making speeches or writing articles, even if neither the subject of
the speech or article nor the person or group paying for it had any connection with
the employee’s official duties. The prohibition did not apply to books, nor to fiction
or poetry.232 The Court noted that, “[u]nlike Pickering and its progeny, this case does
not involve a post hoc analysis of one employee’s speech and its impact on that
employee’s public responsibilities.... [T]he Government’s burden is greater with
respect to this statutory restriction on expression than with respect to an isolated
disciplinary action.”233 Doing the balancing it had mandated in Pickering, the Court
concluded that “[t]he speculative benefits the honoraria ban may provide the
227
Id. at 390-391.
228
See, e.g., Connick v. Myers, supra note 223, 461 U.S. at 152 (“Also relevant is the
manner, time, and place in which the questionnaire was distributed.”).
229
511 U.S. 661, 668 (1994).
230
Id. at 677 (emphasis in original).
231
Id. at 676, 677.
232
513 U.S. 454 (1995).
233
Id. at 466-468.
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Government are not sufficient to justify this crudely crafted burden on respondents’
freedom to engage in expressive activities.”234
In City of San Diego v. Roe, the Court held that a police department could fire
a police officer who sold a video on the adults-only section of eBay that showed him
stripping off a police uniform and masturbating.235 The Court found that the officer’s
“expression does not qualify as a matter of public concern ... and Pickering balancing
does not come into play.”236 The Court also noted that the officer’s speech, unlike
federal employees’ speech in NTEU, “was linked to his official status as a police
officer, and designed to exploit his employer’s image,” and therefore “was
detrimental to the mission and functions of his employer.”237 Therefore, the Court
had “little difficulty in concluding that the City was not barred from terminating Roe
under either line of cases [i.e., Pickering or NTEU].”238 This leaves uncertain
whether, had the officer’s expression not been linked to his official status, the Court
would have overruled his firing under NTEU or would have upheld it under
Pickering on the ground that his expression was not a matter of public concern.
In Garcetti v. Ceballos, the Court cut back on First Amendment protection for
government employees by holding that there is no protection — Pickering balancing
is not to be applied — “when public employees make statements pursuant to their
official duties,” even if those statements are about matters of public concern.239 In
this case, a deputy district attorney had presented his supervisor with a memo
expressing his concern that an affidavit that the office had used to obtain a search
warrant contained serious misrepresentations. The deputy district attorney claimed
that he was subjected to retaliatory employment actions, and sued. The Supreme
Court held “that when public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment purposes, and
the Constitution does not insulate their communications from employer discipline.”240
The fact that the employee’s speech occurred inside his office, and the fact that the
speech concerned the subject matter of his employment, were not sufficient to
foreclose First Amendment protection.241 Rather, the “controlling factor” was “that
his expressions were made pursuant to his duties.”242 Therefore, another employee
in the office, with different duties, might have had a First Amendment right to utter
234
Id. at 477.
235
543 U.S. 77 (2004).
236
Id. at 84.
237
Id.
238
Id. at 80.
239
Garcetti, supra note 217, 547 U.S. at 421.
240
Id.
241
The Court cited Givhan, supra note 222, for these points. The difference between
Givhan and Ceballos was apparently that Givhan’s complaints were not made pursuant to
her job duties, whereas Ceballos’ were. Therefore, Givhan spoke as a citizen whereas
Ceballos spoke as a government employee. See, 547 U.S. at 420-421.
242
Garcetti, supra note 217, 547 U.S. at 421.
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the speech in question, and the deputy district attorney himself might have had a First
Amendment right to communicate the information that he had in a letter to the editor
of a newspaper. In these two instances, a court would apply Pickering balancing.
Government Contractors
In Board of County Commissioners v. Umbehr, the Court held that “the First
Amendment protects independent contractors from the termination of at-will
government contracts in retaliation for their exercise of the freedom of speech.”243
The Court held that, in determining whether a particular termination violates the First
Amendment, “the Pickering balancing test, adjusted to weigh the government’s
interests as contractor rather than as employer,” should be used.244 The Court did
“not address the possibility of suits by bidders or applicants for new government
contracts....”245
In Elrod v. Burns246 and Branti v. Finkel,247 the Supreme Court held that
“[g]overnment officials may not discharge public employees for refusing to support
a political party or its candidates, unless political affiliation is a reasonably
appropriate requirement for the job in question.”248 In O’Hare Truck Service, Inc. v.
Northlake, the Court held “that the protections of Elrod and Branti extend to ... [a
situation] where the government retaliates against a contractor, or a regular provider
of services, for the exercise of rights of political association or the expression of
political allegiance.”249
243
518 U.S. 668, 670 (1996).
244
Id. at 673.
245
Id. at 685.
246
427 U.S. 347 (1976).
247
445 U.S. 507 (1980).
248
O’Hare Truck Service, Inc. v. Northlake, 518 U.S. 712, 714 (1996).
249
Id.